vs. ) CASE NO. 94-1252
Respondent. )
vs. ) CASE NO. 94-1253
Respondent. )
Upon due notice, this cause came on for formal hearing in Tallahassee, Florida on July 15, 1994, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.
For Petitioner: John H. Beck, Esquire
Ellen T. Chadwell, Esquire Beck, Spalla & Barrios, P.A. 1026 East Park Avenue Tallahassee, Florida 32301
For Respondent: Charles G. Gardner, Esquire
Whether or not Petitioners as "displaced persons" are entitled to relocation assistance from Respondent Department of Transportation, under the applicable statutes and regulations, to wit: 49 C.F.R. Sections 24 and 25, Section 421.55(1),(2)(c), and (3) F.S. and Rule 14-15.005 F.A.C.
Petitioners, Furniture Showcase, Inc. and Chrysalis Decorative Fabrics, filed their respective relocation appeals on January 28, 1993. The Respondent
agency, Florida Department of Transportation (FDOT) denied the relocation appeals on April 2, 1993 on the basis that Petitioners were not displaced persons as defined in 49 CFR 24.2(g)(2)(vi).
On May 26, 1993, a formal administrative hearing was requested individually by Petitioners. These requests were referred by FDOT to the Division of Administrative Hearings (DOAH) for formal proceedings pursuant to Section 120.57(1) F.S. on March 9, 1994. Due to the similarity of the legal and factual issues involved, these cases were consolidated by an order entered May 11, 1994.
At formal hearing, Joint Exhibits A-D were admitted. During the hearing, the Petitioners presented the oral testimony of Nevins C. Smith, Jr., David McLaurin, June McLaurin, and Arlene Wingate and had Petitioner's Exhibits 1 through 6 admitted in evidence. The Respondent presented the oral testimony of Bud Eddleman, and had Respondent's Exhibits 1 through 5 admitted in evidence.
Official recognition was taken of Section 421.55 F.S. and 49 CFR 24.2.
A transcript was filed in due course, and all timely-filed proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.
Respondent agency, FDOT, filed a Circuit Court eminent domain action to condemn certain property in Tallahassee, Leon County, Florida for the purpose of constructing, reconstructing and maintaining a state transportation facility for the use of the general public, including, but not limited to, rights-of-way, borrow pits, drainage ditches, drainage easements, construction easements and service roads. There is no dispute that this is a federally-funded project.
The condemned property included a taking in limited access rights and a temporary construction easement from a larger parcel of commercially developed property, called "Plaza 10", owned by a group of individuals and controlled by William Grow as managing partner.
Plaza 10 is located on the northwest corner of Raymond Diehl Road and Capital Circle NE. Petitioners, Furniture Showcase Inc. and Chrysalis Decorative Fabrics, had leased space in buildings located at Plaza 10 where each had profitably operated their respective businesses for at least nine years.
An Order of Taking was entered in the eminent domain action on April 27, 1992, and title transferred to the Respondent within twenty days thereof when the sum of $10,000 was deposited in the court registry for the benefit of William Grow and his partners. Petitioners received nothing thereby. There is no dispute that there was a partial acquisition by FDOT of the property upon which Petitioners' respective businesses were located.
Petitioners attended several public meetings pertaining to the proposed construction. Plaza 10 had two driveways providing ingress and egress for Plaza
10 onto Raymond Diehl Road, and FDOT's plans included closure of the westernmost driveway. However, Petitioners became aware of the extent of the proposed project and its potential impact on their businesses at a mediation meeting with FDOT held in December 1992 in connection with the eminent domain action.
Petitioners could have renewed their leases upon favorable terms at Plaza 10, but on December 28, 1992, Furniture Showcase Inc. notified Plaza 10
that it would not renew its lease. Chrysalis notified Plaza 10 on December 29, 1992 that it would not renew its lease. Both Petitioners gave anticipated loss of business and profitability as their reasons for leaving Plaza 10.
Petitioners moved their businesses from their prior location at Plaza
10 in February of 1993, prior to the commencement of any construction, but after surveying had begun. Construction was delayed because FDOT took bids three times and only settled on a contractor sometime in late 1993 or early 1994, at which time construction finally began.
Both of Plaza 10's original driveways to Raymond Diehl Road remained open and in use as of the 1994 formal hearing herein.
The City of Tallahassee and Leon County posed no impediments to Petitioners continuing in business at Plaza 10, whether or not a driveway is eventually closed.
Petitioners filed claims in Circuit Court for business damages arising out of the anticipated loss of business and profitability arising from the loss of previously existing access rights to the lease-hold interest in Plaza 10.
The result of this Circuit Court suit are not in evidence.
Chrysalis relocated to Betton Place in February 1993, where it continues to conduct business. Furniture Showcase Inc. has moved its remaining business goods to the home of its principals and no longer conducts business, asserting at formal hearing herein that it has yet to find a profitable site for its business.
Furniture Showcase Inc. sold solid wood and up-scaled upholstered furniture and was located in Plaza 10 for nine-and-a half years. In the whole of that time, it primarily received its shipments of furniture in full-sized WB-
50 tractor-trailer trucks or "semis," through the western driveway, which FDOT plans to close off.
In reaching the decision to vacate Plaza 10 in 1993, Furniture Showcase Inc. concluded that it could no longer operate its business successfully at that location due to the inability to receive its freight, reduction in access, and the concern of its customers in accessing the site.
Chrysalis Decorative Fabrics sold furniture, carpeting, decorative fabrics, wallpaper, and interior design items. It was located at Plaza 10 for nine years. It also received freight which was delivered by full-sized tractor- trailer trucks. The operation of its business is dependent upon receiving such deliveries, including but not limited to room-size carpets and fabric in 54 inch long/15 inch diameter rolls. When ordering its merchandise, Chrysalis Decorative Fabrics has no control over how the merchandise will be shipped and delivered by its suppliers or what type of vehicle the suppliers will employ. Usually, its suppliers also utilize "semis". At Plaza 10, these trucks also always used the western driveway. Chrysalis' principal, Arlene Wingate, did an informal poll of her clientele and suppliers and concluded she would lose business due to implementation of the FDOT design plan.
Nevins Smith, P.E., was accepted as an expert witness in site planning and civil engineering. He opined, without refutation, that a retail establishment which constitutes a "destination-type" business on the site of Plaza 10 and relies on truck traffic could not stay in business.
Businesses fall into two major classifications: "destination-type" and "convenience-type." Both these Petitioners fall in the "destination-type" classification because they attract and cater-to persons who select them before driving to them. Their clientele seek them out intentionally, as opposed to selecting them on the spur of the moment as one might suddenly turn into a "Seven-Eleven" for a bag of potato chips when hunger strikes. A roadside "convenience store" like "Seven-Eleven" is a prototype of a "convenience-type" business. "Destination type" businesses are not aided by increased traffic speed and flow and require as many routes in and out of their establishments as possible so that customers can comfortably and safely come and go from many directions.
Mr. Smith also demonstrated effectively that the FDOT plans eliminated all but four of twenty-five customer entrance and egress route options for Petitioners' clientele.
By a Final Judgment on Counterclaim entered May 5, 1994, the Circuit Court of Leon County determined in the eminent domain action that the landowners had "lost 84 percent of the accessibility enjoyed prior to the FDOT project and after construction of the project, [the] property is accessible only by a tedious and circuitous route to reach the premises which is patently unsuitable.
The FDOT project converts the portion of Raymond Diehl Road abutting the Plaza 10 property from a land service road into a limited access facility.
The construction of the unbroken median in front of the subject property extending from Capital Circle N.E. to the intersection of the Cabot Lodge entrance and Raymond Diehl Road constitutes a limited access fence for the specific protection of Interstate 10 (State Road 8) traffic utilizing Raymond Diehl as a limited access ramp.
As a result of the condemnation of Plaza 10 and the proposed project, the extended construction of an interstate limited access fence will result in the closure of the westerly driveway connection. The proposed limited access fence will run along the west side of the property from the northwest end of the existing interstate fence, turning east along the south side of the property to a point beyond the existing westerly driveway, thereby closing the driveway connection.
There exists no access to Plaza 10 from Capital Circle or the northern or western boundaries of the property. The only access to the property that will exist after completion of the construction project is the single easterly driveway connection.
Unrefuted expert testimony established that the intersection of Capital Circle NE and Raymond Diehl Road (SE corner of Plaza 10) is the entrance to a high-speed Interstate 10 on-ramp. The radius of this turn lane allows cars to negotiate the turn onto Raymond Diehl at approximately 25-30 m.p.h. and to accelerate in front of the subject property.
The unrefuted testimony of Nevins Smith, P.E., and the Petitioners establishes that the reduction in accessibility to the property will result in a loss of customers, adversely affecting the ability of the Petitioners to operate their business profitably.
In addition to the overall reduction in accessibility of customers to the site, the closing of the westerly driveway will also substantially or
completely impair the ability of Petitioners' businesses to receive freight deliveries. Full-sized WB-50 "semis" (tractor-trailer trucks) historically have been able to enter the property only through the westerly driveway because the site of the easterly driveway connection and the on-site space available prohibits the necessary turning motion.
Petitioners testified without refutation that, based upon their years of experience and expertise in their respective businesses, the combination of the loss of customer access and inability to receive their individualized types of inventory caused them to conclude that continuing at the Plaza 10 location would be committing their businesses to an economic death.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.
Sections 421.55(2)(c) and (3) F.S. provide in pertinent part as follows,
As used in this section:
(c) "Displaced person" means any individual, partnership, corporation, or association that
is required to move from any real property on or after March 20, 1972, as a result of the acquisition of such real property for public purposes, or who, as the result of the acquisition for public purposes of real property on which such person is conducting business or farm operation as defined in Pub. L. No. 100-17, is required to move said business or farm operation.
The state is authorized and empowered, in acquiring real property for use in any public project or program in which federal or federal-aid funds are used, to make all such relocation and other payments to or for displaced persons as are required under the provisions of Pub. L. No. 100-17, and to provide such displaced persons with relocation services and make available to them replacement dwellings, as required by Pub. L. No. 100-17.
Specific to this instant cause are 49 CFR Sections 24.2 (g)(1) and (2), providing, in pertinent part, as follows:
(g) Displaced person - (1) General. The term displaced person means any person who moves from the real property or moves his or her personal property from the real property: . . .
As a direct result of a written notice of intent to acquire, the initiation of negotiations for, or the acquisition of, such real property in whole or in part for a project.
As a direct result of rehabilitation or demolition for a project; or
As a direct result of a written notice of intent to acquire, or the acquisition, rehabilitation or demolition of, in whole or in
part, other real property on which the person conducts a business or farm operation, for a project.
. . .
(2) Persons not displaced. The following is a nonexclusive listing of persons who do not qualify as displaced persons under this part:
* * *
A person who is not required to relocate permanently as a direct result of a project. Such determination shall be made by the Agency in accordance with any guidelines established by the Federal agency funding the project (see also appendix A of this part); or
* * *
(vi) A person whom the Agency determines is not displaced as a direct result of a partial acquisition;
* * *
Without specifically stating same, FDOT defended against Petitioners' claim for relocation benefits (moving expenses) upon eminent domain and business damage theories, and the agency position seemed to be that because Petitioners relocated (moved from the premises) prior to (or without) any physical taking by FDOT of their business buildings or parking spaces and because there was not a complete or absolute loss of access prior to their relocation, Petitioners do not qualify as "displaced persons."
Assuming, arguendo, but not ruling, that those legal theories might control eminent domain and/or business damage cases tried in Circuit Court, FDOT has cited no authority as to why they should govern this administrative proceeding, which ultimately seeks relocation damages under federally prescribed norms.
FDOT's post-hearing proposal only asserts in a conclusionary fashion that Petitioners were not required to relocate permanently as a direct result of FDOT's project, because they were displaced as a result of a partial acquisition, and because closure of any access between Plaza 10 and Raymond Diehl Road remains speculative until actually completed.
Petitioners have treated the case as an opportunity to appeal FDOT's denial of relocation assistance. To the contrary, the case sub judice is a de novo proceeding, not an "appeal" of agency action. The Petitioner bore the duty to go forward and the burden of proof to establish the elements of the case within a preponderance of the evidence.
The only issue framed by the parties and the facts of this case is whether or not the Petitioners were displaced as a direct result of the federally funded FDOT project.
The agency has not introduced its Right of Way Procedures Manual, nor cited to it, and has explicated no incipient policy or published agency rule to support its legal theory for denial. It has also cited no guidelines established by the federal agency funding the project other than those found at
49 CFR Part 24.
Since 49 CFR 24.2 (g), by its own clear language, contemplates that a "displaced person" may be one who "moves his or her personal property . . . as a direct result of a written notice of intent to acquire, the negotiations for, or
the acquisition of, such real property in whole or in part for a project," it would seem that the federal regulations do not consider all planned events in connection with the project to be so speculative as to preclude the payment of relocation assistance. Put another way, FDOT's argument that until construction physically accomplishes removal of all access Petitioners cannot qualify as "displaced persons" is not persuasive, because notice of intent to acquire or the negotiations for acquisition, or the actual acquisition of real property in whole or in part is sufficient under the rule to bestow "displaced person" status upon occupants who move their goods and possessions.
49 CFR Part 24.2 (g)(2)(vi) defines a person not displaced as "a person whom the Agency determines is not displaced as a direct result of a partial acquisition." Although the Act does not specifically define "persons not displaced," it grants discretion to the agency to determine when a person is not displaced as a direct result of the project. This discretion, however, cannot be arbitrarily applied. The unrefuted testimony herein clearly establishes that Petitioners were faced with removing their businesses or slowly going out of business. A business need not have the property it sits on pulled out from under it in order to qualify as "displaced".
The congressional intent and purpose in creating the Uniform Act dictates that all circumstances unique to each business should be considered and that displaced persons should be treated fairly, consistently and equitably. See, 42 USC 4621(c) and 49 CFR Section 24.1(b).
Although an administrative agency is afforded wide discretion in interpreting statutes which it administers, when an agency's interpretation conflicts with legislative intent, a court need not follow the agency's interpretation. See, Skiff's Workingman's Nursery v. Department of Transportation, 557 So.2d 233, 234 (Fla. 4th DCA 1990) wherein the court found FDOT's interpretation of federal regulations and its denial of reimbursement for impact fees contrary to the congressional intent that businesses be treated fairly and equitably under the Uniform Relocation Act.
Herein, the type and size of delivery vehicles and the accessibility of such vehicles to the site were unique aspects of the Petitioners' businesses which should be considered when determining whether the project would require a move from the real property by these businesses. These unique circumstances reasonably threatened to impair the operation of these businesses as a result of the project.
The uncontroverted evidence presented by Petitioners at formal hearing showed that larger delivery vehicles, i.e., WB-50 semis, cannot safely enter the property through the easterly driveway which will be the only access available to the entire property after completion of the project.
Petitioner Furniture Showcase Inc. established that its deliveries were made by semi-trucks and the inability to receive these deliveries would render it impossible to operate their business.
Petitioner Chrysalis Decorative Fabrics also established that a substantial portion of its inventory was supplied by tractor-trailer truck deliveries, that its business was dependent on such deliveries, and that it was beyond Chrysalis' control what type of vehicle was used for such deliveries.
Respondent FDOT presented no evidence to rebut these showings by either Petitioner.
The evidence presented by Petitioners through Nevins Smith's testimony, their own testimony, and a judicial determination in the underlying Circuit Court (inverse) condemnation suit as to the loss of accessibility to the site also was unrefuted.
The Petitioners also presented evidence that the reduction in accessibility caused by the construction of the median which constitutes a limited access fence, the proposed closing of the westerly driveway connection, and the creation of a high-speed on-ramp to I-10 as a result of the construction will substantially impair the ability of their businesses to operate successfully at that location. The total effect, rather than any individual factor, is what has rendered these "destination-type" businesses, "displaced persons."
FDOT's concern that to permit relocation damages when a project remains subject to reasonable changes before completion undoubtedly arises from a fear that unscrupulous persons may use their own unilateral speculation as to how a project will turn out in order to finance, at state expense, an otherwise calculated move. FDOT is to be commended for its vigilance in this regard, but there is nothing in the facts of this case to suggest that these Petitioners had such a motive. FDOT's delay in letting the construction contract did not deter the Circuit Court from entering judgment that the loss of access on the "as built" project designs was the equivalent of a fait accompli. Given the language of the federal regulations cited supra, there is even less reason to be generally concerned for relocation purposes with the "speculative nature" of the FDOT project. Also, specific to this case are the facts that these Petitioners had a long and successful track record at the location from which they were displaced, could have renewed their respective occupational licenses by merely paying a renewal fee, and had an option to continue their leases at favorable rates. No reason but for the loss of accessibility directly related to the FDOT project acquisition plans was demonstrated.
There are a dearth of Florida cases concerning the Uniform Relocation Act. Going back as far as 1984, only three cases appear in the Division of Administrative Hearings' ACCESS case retrieval system, and only one case is helpful in resolving the instant case. See, Forman's Dairy Palm Nursery v. Department of Transportation, State of Florida, 608 So.2d 76 (Fla. 4th DCA 1992). Accordingly, it is not unreasonable to search other jurisdictions' case law for some analogous cases. In so doing, it is concluded that the Respondent's refusal to consider the resulting impact from the project on Petitioner's businesses ignores the fact that the economic infeasibility of continuing the operation of a business can be a necessitating factor in a displacee's move. See, Steppelman v. State Highway Commission of Missouri, 650 S.W. 2d 343 (Mo. App. 1983).
The holding in Forman's Dairy is based on the 1987 version of Section
421.55 F.S., which omits the current "as a direct result" language. The case stands, among other things, contrary to the recommended and final orders from which it arose, for the premise that relocation benefits do not turn upon whether the land acquisition has been total or partial and plainly contemplates such benefits may be awarded even for partial acquisitions, and even, still, of somebody else's land, as here. In Steppelman, the court found that the Missouri State Highway Commission had failed to support its determination that owners of a mobile park were not displaced where the commission produced no evidence to rebut evidence of the economic infeasibility of continuing the operation of the
mobile park at its location after a partial acquisition of the real property. The Steppelman court reasoned at page 345 as follows:
The Commission produced no evidence to rebut plaintiffs' evidence of the economic infeasi- bility of continuing the operation of the mobile park at that location. What was said in the relocation case of Smith v. Missouri State Highway Commission, 488 S.W.2d 230, 239[9] (Mo.
App. 1972), is pertinent: "There is nothing stated nor implicit in the Highway Relocation Assistance Act that requires a displaced person to accept relocation under conditions which would make it economically unsound, to move from the area of
his source of business, nor operate under physical conditions which impede or prevent efficient operation. These matters are obviously within
the knowledge of the person operating the business rather than the relocater who attempts to assist but is necessarily without qualified knowledge. The ultimate decision must be that of the person dislocated." Compare Beaird-Poulan Division of Emerson Electric Co. v. Department of Highways,
441 F. Supp. 866 (W.D.La.1977), aff'd 616 F.2d 255
(5th Cir. 1980), cert. denied 449 U.S. 1104, 101 S.
Ct. 903, 66 L.Ed.2d. 832 where property taken had no improvements but the taking of the land caused
the company to be without room for future expansion. The court said, p. 872[4], "The Act does not require that assistance be given to every person who loses a portion of his land to a federally assisted project. Reimbursement of expenses is due only when it can be shown that the owner moved as a result of the partial acquisition", and held that Beird-Poulan was a "displaced person" under the Act.
Under the foregoing reasoning, Petitioners herein are concluded to be "displaced persons." Having so concluded, that conclusion should not be read to hold that the ultimate decision of whether one is "displaced" lies in the unilateral speculation of the one claiming to be displaced. Herein, there was both a prior Circuit Court judgment which removed the "as built" plans from "mere speculation" plus overwhelming evidence that the construction would begin a slow business death for Petitioners if they remained, resulting in a probable complete demise of their businesses upon final completion of the FDOT project. Under these specific conditions, Petitioners were not required to lose money while awaiting the inevitable construction before they relocated.
Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Transportation enter a Final Order be entered finding that the Petitioners, Furniture Showcase, Inc. and Chrysalis Decorative Fabrics, were required to move their businesses from the Plaza 10 site as a direct result of the partial acquisition of real property from the site of the project; that this necessitated move qualifies both Petitioners as "displaced persons" under the applicable law; and that appropriate measures
shall be undertaken to establish the amount and reasonableness of Petitioners' respective claims for relocation expenses.
RECOMMENDED this 31st day of October, 1994, at Tallahassee, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1994.
The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).
1-9 Accepted and adopted.
10-12 Accepted, except that unnecessary, subordinate, and/or cumulative material was eliminated.
13-19 Accepted as minimally modified to remove conclusions of law and mere legal argument.
20 Covered in preliminary matters and conclusions of law.
Respondents' proposed findings of fact begin with #6. Paragraphs 1-5 are preliminary matters not requiring a ruling pursuant to Section 120.59(2) F.S.
6-9 Accepted.
10 Rejected upon the greater weight of the evidence; covered within the Recommended Order.
11-15 Accepted.
19-20 Accepted but utilized only so far as relevant.
21 Accepted.
22-23 Covered under preliminary matters.
Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street
John H. Beck, Esquire BECK, SPALLY & BARRIOS
1026 E. Park Avenue Tallahassee, FL 32301
Ben G. Watts, Secretary Department of Transportation Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street
Thornton J. Williams, Esquire Department of Transportation
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
